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论辩护律师保密义务与真实义务之间的冲突与解决

On the Conflict between the Confidentiality Obligation and the Truthfulness Obligation of Defense Lawyers and Its Resolution

中文摘要英文摘要

辩护律师在刑事诉讼中一直是至关重要的角色,对于维护司法的公平正义起着关键作用。在律师执业中,如何化解辩护律师履行保密义务中的作证困境,化解辩护律师保密义务与真实义务之间的冲突,这是律师执业普遍关注的问题。究其冲突原因主要是辩护律师角色的双重性和两个义务体现的价值不同。大多学者都是从理论基础、制度构建的角度出发,通过厘清两者的边界,从而探索解决冲突的路径。对于现实实践中具体的伦理困境的破解对策讨论较少。本文在原因分析的基础上,结合中国国情,借鉴德美两国对于两种义务冲突的解决模式,企图通过赋权和场景化分析来找寻冲突化解的措施。辩护律师应当基于其首要是犯罪嫌疑人、被告人的辩护人的角色,切实履行好保密义务,更为重要的是,法律需要对律师履行保密义务所承担的风险进行权利保障,这样才更有便于辩护律师根据具体事实和情况做好价值平衡。

defense attorney has always been a crucial figure in criminal proceedings, playing a key role in upholding justice and fairness. In the practice of law, how to resolve the dilemma of defense attorneys fulfilling their?confidentiality obligations and reconciling their confidentiality obligations with their duty to tell the truth is a problem of universal concern in the practice of law. The root cause of this conflict is mainly the dual role of defense attorneys and the different values reflected by the two obligations. Most scholars have explored the issue from the perspective of theoretical foundations and institutional construction by clarifying the boundaries between the two, thus seeking solutions to the conflict. However, there has been less discussion on specific ethical dilemmas and their resolution strategies in practical situations. Based on the analysis of the causes, this paper, drawing on the solutions adopted by Germany and the United States for the conflict between the two obligations, attempts to find measures for conflict resolution through empowerment and scenario analysis, taking into account Chinas national conditions. Defense attorneys should fulfill their confidentiality obligations based on their primary role as the defense counsel of the suspect or accused person. More importantly, the law needs to provide rights guarantees for the risks faced by defense attorneys in fulfilling their confidentiality obligations, so that they can better balance the values based on specific facts and circumstances.

伍丁雨

法律

辩护律师保密义务真实义务

efense lawyerthe Confidentiality Obligationthe Truthfulness Obligation

伍丁雨.论辩护律师保密义务与真实义务之间的冲突与解决[EB/OL].(2024-11-22)[2025-07-22].https://chinaxiv.org/abs/202411.00244.点此复制

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